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CharlotteSJ
CharlotteSJ, Immigration Solicitor
Category: UK Immigration Law
Satisfied Customers: 78
Experience:  I have 6 years experience in Immigration law and I am accredited to LSC Level 2 and OISC Level 3.
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I am an American citizen married to a UK citizen. Ive been

Resolved Question:

I am an American citizen married to a UK citizen. I've been living in the UK under a Spouse Visa and was about to start the Set(M) application for a ILR when I realized that I had misread my visa expiry date -- I read 10/01/11 as an American would, thinking it was October 2011. Now I am horrified to realize that it actually expired in January 2011 and I have accidently overstayed. My question is: What do I do know? Can I continue the ILR application process in this country, or do I have to leave immediately? What should I do next?
Submitted: 2 years ago.
Category: UK Immigration Law
Expert:  CharlotteSJ replied 2 years ago.
You can still make your application even if it's out of time. The only problem you may have is if your application is refused in any way, you will not get a right of appeal.

It may be a good idea to get the help of a solicitor in making your application to ensure that your application meets the rules and there is no reason for the Home Office to refuse it.

It would also be a good idea to explain in your covering letter why you are submitting your application out of time.

Despite the fact that it is out of time, this does not automatically bar you from now making the application so don't worry so much. Now that you've realised the error, just try and rectify it as soon as possible and get your application in asap.

You will need to show that you and your spouse are still living in a subsisting relationship so include your marriage certificate, photos of you together and birth certificates for any children you have. You will need to show that this relationship has subsisted throughout the last 2 years and so you will need to include correspondence addressed to you individually and together at the same address from throughout the last 2 years. Preferably from official sources such as government departments, your GP, utility companies, banks etc.

You will also need to show that you have passed the life in the UK test.

http://lifeintheuktest.ukba.homeoffice.gov.uk/

http://www.ukba.homeoffice.gov.uk/sitecontent/applicationforms/settlement/formsetm0420091.pdf

Best of luck with the application.
Customer: replied 2 years ago.
Thank you for that information. Our main concern is that I'm now here illegally since my Spouse Visa expired. What should I do about that? Do I need to leave the country or inform the Border Agency immediately?
Expert:  CharlotteSJ replied 2 years ago.
You are here illegally and technically, if the Home Office want to remove you, they can but it's unlikely. Informing the UKBA won't make any difference other than to bring to their attention that you have overstayed. The only thing that can prevent removal should they chose to exercise it is having an outstanding application. Chances are even if you wrote to them and told them what had happened and said that you were trying to get an application in asap, it will get lost in the black hole that is Lunar House with no-one wanting to look at it since they have no open file on you at the moment.

It is up to you whether you chose to return to the USA or make your application from here. If you return to the USA, you could be out for potentially months as they may not make a decision quickly, and if they refuse it, you will be separated from your spouse while an appeal goes through which could be 6-9 months. You will still need to pass the life in the UK test and you may find that they grant you a further extension of leave rather than Indefinite leave since the immigration rules only provide for indefinite leave to remain, not indefinite leave to enter.

My advice would be to make the application from here but do it urgently. If you have already passed the life in the UK test (since by your calculations, your visa expired in a month anyway) then print the form and send it with your life in the UK certificate, passport photos, fee and whatever evidence you can get together this week by special delivery and a covering letter explaining what has happened and that further documentation is to follow. You can keep adding to your application up to the point that they make a decision. If you haven't passed it, and you think it may take you a while to pass it, you could make an application for further leave to remain in the UK on the basis of your spouse now, explain the circumstances and that you have not yet passed the test and then make your ILR application once you are ready. At least then you have an outstanding application which means you cannot be removed.

The other thing to consider at the moment is whether you are working. If you are, then technically you are committing a criminal offence as you have no leave. (If you had submitted your application when you had existing leave then your leave would have been extended until you got a decision but as you didn't, you no longer have permission to work or study). My advice would be to stop working until your have your ILR.

Thanks
CharlotteSJ, Immigration Solicitor
Satisfied Customers: 78
Experience: I have 6 years experience in Immigration law and I am accredited to LSC Level 2 and OISC Level 3.
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